Combs v. Crawford

• Decision Date: 15 March 1935
• Citation: 80 S.W.2d 46,258 Ky. 405
• Parties: COMBS et al. v. CRAWFORD.
• Court: Kentucky Court of Appeals

80 S.W.2d 46

258 Ky. 405

COMBS et al. v. CRAWFORD.

Court of Appeals of Kentucky

March 15, 1935

Appeal from Circuit Court, Perry County.

Suit by Henry Crawford against McKinley Combs and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

John E Campbell, of Hazard, for appellants.

C. W Napier and Napier & Eblen, all of Hazard, for appellee.

PERRY Justice.

McKinley Combs, one of the appellants, owns a small tract of land lying about four miles out of Hazard, which was used by it under a contract with Combs, as a dumping ground for its city garbage. The appellee, Henry Crawford, and his family live on an adjoining tract; their dwelling house being located about 400 feet from Combs. Crawford, the nearest resident to this Combs dumping ground, complains that the city's system of garbage disposal creates such obnoxious odors and nauseous stench that the comfort of his home is disturbed and destroyed and his family's health jeopardized thereby.

In September, 1934, plaintiff, complaining of this hurtful use made of this property by the city and Combs, as creating a nuisance, filed his petition against the appellants (defendants below), seeking its abatement by a perpetual injunction and for damages suffered by reason of injuries caused thereby.

By the petition he avers that the city of Hazard, codefendant below pursuant to a contract had with the defendant Combs, uses these premises described and adjoining plaintiff's home for the purpose of a dumping ground for the city's garbage, consisting of meats, decaying vegetables, and other refuse matter, which, when daily hauled out and dumped thereon, create such unbearable odors and nauseous stenches as to poison the atmosphere for many feet around in every direction, particularly infesting and permeating plaintiff's dwelling house; that the defendants, by such wrongful use of the premises, not only so poison the atmosphere and produce such nauseous stenches as to thereby endanger the health of the plaintiff and his family, but that the odors arising therefrom are so offensive as to further destroy the comfort of their home to such an extent that they can at times neither eat nor sleep therein without closing the windows and doors. To abate this condition plaintiff prays for a temporary restraining order against the defendants, for damages in the sum of $200, and that the defendants, upon final hearing, be perpetually enjoined from using the premises described as a dump for the city's garbage.

Defendants separately answered, traversing the averments of the petition, and further pleaded that the city had, upon the request of plaintiff, in May, 1934, discontinued the use of the defendant Combs' premises for a garbage dumping ground upon complaint made, and had not thereafter so used the lot until later in September, when Combs again applied for the garbage rights and represented that he, under the instruction of Dr. Carr, the county health officer, had devised and adopted a plan whereby the use of his premises might be renewed by the city as a dumping ground for its garbage without causing injury to plaintiff by constructing an incinerator on the ground wherein would be burned daily such part of the city's garbage dumped upon the premises as was not consumed by defendant's hogs, to which it was fed; and that by so operating the dumping ground the premises could be used as such without creating a nuisance. Further, defendant pleaded that the proposed use of his premises as a dumping ground for the city's garbage was secured from the city for the purpose of maintaining a piggery thereon, which was not in itself a nuisance, but a legitimate business when properly conducted in the approved manner, as now proposed by him, and was one which would only become a nuisance where it was, as formerly, improperly conducted. So alleging, defendants claimed that the trial court had erred in granting the restraining order, enjoining their use of Combs' premises for purposes of a garbage dumping ground used for maintaining a piggery, as the effect of granting the restraining order upon these facts amounted to an improper granting of an injunction against an eventual or contingent nuisance rather than against an actual or existing one to which only the right to injunctive relief is limited.

Upon submission of the cause to the court upon plaintiff's motion for a permanent injunction, upon the pleadings and proof heard in open court, and also upon defendants' motion to dissolve the restraining order, the court, after hearing the proof introduced in support of both motions, adjudged the plaintiff was entitled to the injunctive relief sought in his petition and that the defendants be jointly and severally permanently enjoined from using defendant Combs' premises as a dump for the city's refuse and garbage and from burning the same thereon, and from in any wise using the premises in a way that would produce offensive odors and nauseous stenches, destroying plaintiff's and his family's comfort in the use of their dwelling house.

The evidence heard for the appellee conduced to show that on September 25 the defendant city of Hazard had renewed its earlier contract with the defendant Combs to use his premises as a dumping ground for its garbage and refuse matter, upon his agreement to hold the city harmless and his representations made that its garbage, when dumped upon his premises, would be so handled by burning it in an approved incinerator (which he was constructing thereon) as to prevent its creating offensive or injurious odors. The county...